Free Speech

Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today

The Free Press Clause, my research led me to conclude, has long been understood as equally protecting all who speak using the means of mass communications -- not just professional journalists and the like.

|The Volokh Conspiracy |

The comments on my recent Do Ordinary Speakers Have Lesser First Amendment Rights Than Newspapers Do? post reminded me that many people think that in the Framing era "the freedom of the press" referred to the freedom of newspapers and similar professional media institutions. But the historical record, I think, clearly opposes this view; indeed, from the late 1700s through the 1800s and into the 1900s the overwhelming view was that the media don't have any more constitutional rights than the rest of us. And since this question perennially arises, I thought I'd serialize my 2011 Penn Law Review article on the subject here, at least focusing on the early American history.

I begin here with the Introduction, and will then move on to the specific evidence in coming posts (with most footnotes omitted). But you can read it all in one fell swoop, if you'd like, here, in PDF form.

* * *

"[T]he freedom … of the press" specially protects the press as an industry, which is to say newspapers, television stations, and the like—so have argued some judges and scholars, such as the Citizens United v. FEC dissenters and Justices Stewart, Powell, and Douglas. This argument is made in many contexts: election-related speech, libel law, the journalist's privilege, access to government property, and more. Some lower courts have indeed concluded that some First Amendment constitutional protections apply only to the institutional press, and not to book authors, political advertisers, writers of letters to the editor, professors who post material on their websites, or people who are interviewed by newspaper reporters.

Sometimes, this argument is used to support weaker protection for non-institutional-press speakers than is already given to institutional-press speakers. At other times, it is used to support greater protection for institutional-press speakers than they already get. The argument in the latter set of cases is that the greater protection can be limited to institutional-press speakers, and so will undermine rival government interests less than if the greater protection were extended to all speakers.

But other judges and scholars—including the Citizens United majority and Justice Brennan—have argued that the "freedom … of the press" does not protect the press-as-industry, but rather protects everyone's use of the printing press (and its modern equivalents) as a technology. People or organizations who occasionally rent the technology, for instance by buying newspaper space, broadcast time, or the services of a printing company, are just as protected as newspaper publishers or broadcasters. [Footnote: Alternatively, one could conclude that people who rent such access become members of the press-as-industry for those occasions. But then the results would be the same as under the press-as-technology view, because anyone who occasionally uses the press as a technology would be treated the same as members of the press-as-industry.]

Under this approach, the First Amendment rights of the institutional press and of other speakers rise and fall together. Sometimes, this approach is used to support protection for non-institutional-press speakers and to resist calls for lowering that protection below the level offered to institutional-press speakers. At other times, it is used to rebut demands for greater protection: Extending such protection to all speakers, the argument goes, would excessively undermine rival government interests—yet allowing such protection only for the institutional press would improperly give the institutional press special rights.

Both sides in the debate often appeal at least partly to the constitutional text and its presumed original meaning. The words "the press" in the First Amendment must mean the institutional press, says one side. The words must mean press-as-technology, says the other. Citizens United is unlikely to settle the question, given how sharply the four dissenters and many outside commentators have disagreed with the majority. So who is right? What light does the "history" referred to by the Citizens United dissent shed on the "text" and the Framers' "purpose"?

The answer, it turns out, is that people during the Framing era likely understood the text as fitting the press-as-technology model—as securing the right of every person to use communications technology, and not just securing a right belonging exclusively to members of the publishing industry. The text was likely not understood as treating the press-as-industry differently from other people who wanted to rent or borrow the press-as-technology on an occasional basis.

Parts I, II, and III set forth the evidence on this subject from the Framing era and the surrounding decades. Part I discusses, among other things, early reference works and state constitutions that described the freedom of the press as a right of "every freeman," "every man," or "every citizen." This right was generally seen as the right to publish using mass technology, as opposed to the freedom of speech, which was seen at the time as focusing more on in-person speech.

Part II discusses the Framing-era understanding that the freedom of the press extended to authors of books and pamphlets—authors who were generally not members of the press-as-industry, though they did use the press as technology. Part III goes on to discuss fifteen cases from 1784 to 1840 that treated the freedom of the press as extending equally to all people who used press technology, and not just to members of the press-as-industry. To my knowledge, these cases have not been discussed before in this context. Each of the sources standing alone may not be dispositive. But put together, they point powerfully toward the press-as-technology reading, under which all users of mass communications technologies have the same freedom of the press.

Part IV turns to how the "freedom … of the press" was understood around 1868, when the Fourteenth Amendment was ratified. Much recent scholarship has suggested that originalist analyses of Bill of Rights provisions applied to the states via the Fourteenth Amendment should consider the original understanding as of 1868 in addition to that of 1791. And it turns out that around 1868, it was even clearer that the "freedom … of the press" secured a right to use the press-as-technology, with no special protection for the press-as-industry. Part V offers evidence that this remained true from 1880 to 1930.

Part VI then looks at how the Supreme Court has understood "freedom … of the press" since 1931, the first year that the Court struck down government action on First Amendment grounds. Throughout that time, the press-as-technology view has continued to be dominant. Many Supreme Court cases have officially endorsed this view. No Supreme Court case has rejected this view, though some cases have suggested the question remains open.

Part VII turns to how the "freedom … of the press" has been understood by lower courts since 1931, and concludes that the press-as-technology view has been dominant there as well. The first lower court decisions I could find adopting the press-as-industry view did not appear until the 1970s. Even since then, only a handful of cases have adopted such a view, and many more have rejected it. (The press-as-industry cases that this Part identifies could also be helpful as test cases for any future work that discusses the policy advantages and disadvantages of the press-as-industry model.)

None of the evidence I describe specifically deals with corporations, the particular speakers involved in Citizens United, but it does show that the institutional media has historically been seen as the equal of other people and organizations for purposes of the "freedom … of the press." The constitutional protections offered to the institutional media have long been understood—in the early republic, around 1868, from 1868 to 1970, and in the great bulk of cases since 1970 as well—as being no greater than those offered to others.

Finally, the Conclusion briefly discusses what effect this analysis should have on the Court's interpretation of the Free Press Clause. Of course, text, original meaning, tradition, and precedent have never been the Supreme Court's sole guides. But any calls for specially protecting the press-as-industry have to look to sources other than text, original meaning, tradition, and precedent for support.

[Footnote moved:] I speak here of communications technologies that today serve the role the printing press did in the 1700s, not just of the printing press as such. "It is not strange that 'press,' the word for what was then the sole means of broad dissemination of ideas and news, would be used to describe the freedom to communicate with a large, unseen audience," even using new technologies that were not known to the Framers. The printing press itself was understood during the Framing era as a technological innovation, and existing rights were understood as being adaptable to technological innovations. See Thomas Hayter, An Essay on the Liberty of the Press Chiefly as It Reflects Personal Slander 3-4 (London, J. Raymond 1754); Francis Ludlow Holt, The Law of Libel 38-39 (1812).

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56 responses to “Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today

  1. Was the institutional/industry meaning of “press” a common vernacular usein the 1700s? The Hartford Courant’s been published since tbe 1760s. How long have people called it, its staff, and its competitors “the press”?

    1. That’s a very interesting question. I am certainly no linguistic anthropologist but the first confirmed example that I have been able to find of “the press” as a collective noun dates to 1918 in W. B. Maxwell’s The Mirror and the Lamp. In that example, it was still capitalized, suggesting that the usage had not yet become generic.

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  2. Not being a lawyer, I have often wondered why there both both “freedom of speech” and “freedom of the press”. The cynical part of me thinks it is an attempt to leave big gaping holes in interpretation for those who yearn for more government power and intrusion. I otherwise figure it must mean there is a difference, but darned if I can figure it out. If “press” means to publish for wider dissemination in both time and space, then freedom of speech is pretty pointless without freedom to publish. If freedom of the press means more than publish, but also includes freedom to gather information to publish, that makes a little more sense.

    But that sort of implies industry as opposed to technology. Maybe “community” would be a better modern phrase than “industry”. Just as “arms” isn’t limited to 1789 technology, so “publish” isn’t limited to 1789 technology.

    It looks like this series will be an excellent education for the likes of me 🙂

    1. Especially at our founding, before speech recording, spoken and printed words were easily distinguishable forms of communication. Nobody would have said the ability to verbally proclaim political views without fear of legal repercussions was basically pointless: it was the primary means of expression for most citizens.

      Clearly there are distinct advantages to published expression, which explains the constitutional protection. Nowadays, “freedom of speech” is used as a catchall term to describe all manner of expression including, potentially, wedding cakes; even in *Citizens United* the majority relies on the “freedom of speech” as the basis of its holding while “freedom of the press” is mentioned mostly in passing and in footnotes in Scalia’s concurrence. Commentators have argued it would have been more straightforward for the Court to base its decision on the “freedom of the press.”

      We may ask why something like art is protected. It’s expression but it’s not clearly “speech” or “press.” But the Court has held time and again that expression is what is protected. Even in 1971 (Cohen v. California), 3 Supreme Court Justices thought that a jacket with the words “F- the draft” didn’t constitute speech, but rather unprotected conduct. It is the legal evolution along with new technologies that lead modern minds to question the need of distinctions of speech and press. I don’t know that Originalists have a great defense of (nor desire to challenge) this evolution.

    2. Take away the metonymy, and it’s easier to understand: “freedom to speak” and “freedom to publish”.

    3. As I said below, freedom of the vocal word and freedom of the printed word. The two forms of communication of the day

  3. But everyone know that the “freedom of the press” applies only to the hand-set and operated printing presses that were in use when the 1st Amendment was written, just like the 2nd Amendment applies only to flintlock muzzle-loaders.

    1. It’s reasonable to apply the principle that the Founders did not anticipate the advance of technology, and therefore their words should not be interpreted expansively to include advances far beyond what they knew..

      There is a qualitative difference between the ability to kill one person every 3 minutes and the ability to kill 30 people in 30 seconds. And the ability to kill 30 million people at once.

      The ability to produce leaflets… the original purpose of the “freedom of the press”… the leaflets could only be distributed at the speed of horseback. Today’s “press” can deliver information at the speed of light. The Founders couldn’t have imagined that, so suggesting that they approved of it and set it into the framework of our society is silly.

      (Besides, there are obvious structural differences between the 1st and 2nd. The first says “Congress shall make no law…” while the second has the words “well-regulated” in it.)

      1. That comment displays either a disturbing ignorance of the firearms technology at the time of the Founding or a deliberate exaggeration. First, a trained musketman could fire 2-3 aimed shots per minute, with elite units getting up to 4 aimed shots per minute, not one every 3 minutes. Second, though expensive, repeating rifles were already known and available (and in private hands) by then. The Girandoni rifle could easily fire 30 shots in 30 seconds. Third, the “weapons of mass destruction” of the day – cannons and major ships of war – were also commonly in private hands. And while you couldn’t kill 30 million people at once, that’s only because the people were spread out. You could, however, lay waste to an entire city all by yourself. Despite all that, they established a clear right to keep and bear arms.

        They also clearly understood the dangers of free speech and free press. They rightly feared a fall into demagoguery. They established a number of substantive political protections against it – and despite all that, also established a clear right to free speech and press.
        (con’t)

      2. (con’t)
        We think of our time as “the fastest pace of change in history” but remember that the Founders thought the same thing, too. They were living through the Industrial Revolution and well understood the pace of technological change. While you have a point that we cannot merely presume that they would have been accepting of all subsequent changes, neither can we presume that they failed to anticipate it. And on balance, presuming that the government should be restricted in its ability to infringe on the liberties of its citizens is the better social policy.

        1. No. The industrial revolution came later?and began later in the U.S. than in England.

          Doesn’t mean your larger point isn’t correct. The founders were, collectively, a group with unusual breadth of experience and ability to anticipate. They were far more sophisticated politically than our modern politicians tend to be, and far more far-sighted. But not about technological change. Their era had not been much troubled by that. By the early 19th century, it would be, especially in England, and just a bit later in the U.S.

          But then there is the matter of what you suppose modern historical inquiry is entitled to suppose, and what not. I can quote you one of America’s greatest historians, Edmund Morgan, when confronted with an insistent colleague from another discipline, largely on the subject of, “neither can we presume that they failed to anticipate it.” Morgan replied, “You can’t do that.” By which he did not mean trying to do it was out of bounds. He meant it was impossible to do.

  4. Why can’t it be the superset of rights implied by both?

    If government is running scared from speech, good. Americans are doing it right.

    I like the idea of press-as-technology. Certainly the FFs would be aware of backhand censorship where, rather than outlawing an idea, those in power outlawed or controlled the means of mass production of speech.

    As for institutional press, recognize fantastic rights, then realize everybody has those rights. Is government scared or inconvenienced? So?

  5. This is a widely misunderstood and important point.

    In fact, not only is it widely misunderstood, it is intentionally obfuscated and misconstrued by the partisan leftists of the mainstream media, such as the Washington Post, which of course I visited for the VC and where I saw this over and over.

    They do this for rhetorical reasons, in order to valorize and aggrandize themselves, claiming equivalency between themselves and the freedom itself. If someone calls them out on their incessant lying and biased reporting, then, as a desperate last resort, they will falsely suggest that freedom of the press is under attack.

    In reality, of course, the freedom to publish information and opinions was never under attack. Rather, the way in which certain people exercise this freedom dishonestly is simply being criticized. Just your typical doublespeak playing on different meanings of “the press.”

    Usually something like “Trump is attacking the free press again. I guess he hates the Constitution and is dangerous to democracy. You see why a bureaucratic coup is necessary. In fact, Trump is as bad as Hitler. Does that mean you should take up arms to assassinate him and maybe shoot up a baseball field of Republicans? Well, we’re not saying that, we’re just making assertions which are sufficient conditions to that necessary condition.”

    1. My reflex was to recommend that right-winger watch movies such as The Post, Spotlight, and All The President’s Men in an effort to learn something, but reflection inclines me to prefer to have movement conservatives remain outside the educated American mainstream, ignorant, and loud.

      Carry on, clingers. So far as Fox News, Instapundit, Breitbart, Newsmax, Drudge Report, and Stormfront can carry you against the likes of The New York Times, The Washington Post, the mainstream network news operations, and responsible journalism in general.

      1. What’s your point? Nobody disagrees that reporters and people checking up on the government can perform a valuable service and do good, as they exercise their freedom of speech and of the press.

        Those more conservative leaning media outlets are just as biased, of course. But they’re not dishonest about it, because they are up front about their viewpoint and don’t pretend to be neutral.

        And of course, reminding me that I am wasting time responding to Arthur, you list an obscure neo-Nazi chat forum alongside mainstream conservatism. You are probably well aware that neo-Nazi views don’t remotely resemble 99.99% of American conservatives, and there are at least as many fringe whackos on the left, probably far more.

        1. If you didn’t like cherry-picked examples aimed for cheap partisan advantage, you’d never spend more than a minute at the Volokh Conspiracy.

        2. “Those more conservative leaning media outlets are just as biased, of course. But they’re not dishonest about it, because they are up front about their viewpoint and don’t pretend to be neutral.”

          The slogan for Fox News Channel was “Fair and balanced”, and at no time has it been either of those things. Now, it’s never been taken seriously or expected by anyone tuning in… they know what they’re going to get… but it was what they chose as a slogan.

          ” You are probably well aware that neo-Nazi views don’t remotely resemble 99.99% of American conservatives.”
          I would suspect that objective measurement, if such were available (possible?) would show a different number. There are a fairly small number of people willing to self-identify as fascists. There are a fairly small number of people willing to self-identify as communists. Conservatives decided that there was importance in party unity, and the party unity position is further to the right than the other guys are. They’re all over the place, and their decision to favor party unity over individual decision-making is more recent and less effective. That’s why FNC draws a bigger audience than left-leaning media… the folks on that side think it’s more important that they all speak with the same message than do the guys on the other side… they saw it work, and are moving that way in response to having seen it work.

          1. The slogan for Fox News Channel was “Fair and balanced”, and at no time has it been either of those things. Now, it’s never been taken seriously or expected by anyone tuning in…

            When you discuss the slogan, remember also the mantra, repeated endlessly, and taken extremely seriously by Fox News devotees: “The mainstream media are liars.”

            Why anyone would suppose that Fox News watchers would believe that, but remain skeptical of “Fair and balanced,” is not easy to discern.

            1. they know what they’re going to get… but it was what they chose as a slogan.

          2. Fox is as fair and balanced as any of the others. The difference is people know the perspective they’re coming from.

      2. You should watch Absent Malice.

  6. There is a logical hole in the minority position in Citizens United. Let’s say that Prof. Volokh is wrong and “freedom of the press” refers to the professional press, not the right by every citizen to disseminate ideas and thoughts through technology.

    Why, however, does that necessarily mean that corporations must enjoy that right?

    The First Amendment protects several rights:

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

    The position of the minority is that corporations enjoy no free speech rights, and presumably no rights to free exercise of religion, or to petition the government, also listed there.

    So why should they enjoy the “freedom of the press?”

    Ben Franklin, IIRC, ran a newspaper that he owned, and perhaps others did too. You can be a professional newsperson and publish a newspaper as a sole proprietorship or a partnership.

    Point is, why do corporations enjoy one right in the First Amendment but not the other rights?

    1. “There is a logical hole in the minority position in Citizens United”

      It is not a “hole”, so much as an intentional political position that ignores both logic and rationality.

      Corporations are nothing more than a legal framework for a group of citizens. If citizens individually enjoy rights, they do not abdicate any of those rights when organized in a group. The minority position is only founded on the partisan position of the left, that prefers diminished corporate power and increased non-corporate special interest power.

      1. ‘If citizens individually enjoy rights, they do not abdicate any of those rights when organized in a group”

        Assertion without evidence.
        (Hint: When you take Business Associations in your second year of law school, you’ll learn the different rights, privileges, and responsibilities that different associations create.)

        Corporations are legal fictions. They exist because the state allows them to exist, and they have exactly those rights the state allows them to have.

        1. James Pollock: Say that the state says, “Sure, we’ll let anyone organize as a corporation, including to publish newspapers — but that corporation will not have the right to publish editorials critical of the government.” OK, because corporations “have exactly those rights the state allows them to have”? Or are there limits on the government’s power to regulate what corporations publish?

          1. The problem is, the state ALSO says, “and if you publish a newspaper without forming a corporation, we’ll facilitate through our courts suing you into bankruptcy.”

            People aren’t forming corporations for yucks. They’re doing it because our legal system makes doing anything that involves significant resources perilous if you don’t.

          2. “Or are there limits on the government’s power to regulate what corporations publish?”

            Can a state court dissolve a corporation? How about the bureaucracy?

            What holds back a state’s naked exercise of power is… the state. Separation of powers works, mostly.

        2. Yes, but…Congress shall make no law, and part of the decision explicitely called out that citizens don’t give up their First Amendment rights as a cost of entry into such things like corporations.

          This might be different from being a public employee or soldier, where blabbering on behalf of your employer, or the appearance thereof, might contradict policy, which is not yours to set or promote. Or anti-promote, in such a situation.

          Congress and the government have no similar interest in silencing The People when they gather as a corporation. This isn’t to say they don’t have powerful monetary availability, but when it is used > 80% to buy the mass production of speech, well, Congress shall make no law…

          1. You’re citing the wrong amendment. It’s the 14th that limits the states, not the 1st.

            A state could, if it chose to do so, not offer incorporation. This is, in fact, what they tend to do for some specific applications. There’s a reason the dominant form of business association for law firms is partnership. Incorporation of a law firm is flatly not available in some jurisdictions, and in other jurisdictions is available only as a “professional corporation”, which has different rights than does a standard corporation.

            Regulated monopolies like utilities, sometimes have restrictions, too… the state may require that any corporation involved in owning or operating such a regulated utility be a corporation of that state. Why does that matter? Because the state can dissolve a corporation.

  7. Professor Volokh continues to be entirely correct, but also continues to confuse the part of his audience which thinks he should go farther, and interpret the 1A to strip institutional media of any rights or powers which Joe Schmoe can’t exercise privately from his computer keyboard. Joe Schmoe has some very expansive ideas about what rights and powers the institutional media ought to be stripped of.

    Please, Joe Schmoe, get this straight now, because Professor Volokh won’t explain it to you explicitly. The 1A protects for the mainstream media rights and powers you would be clueless to exercise, and thus don’t need. But freedom of the press is incomplete if the mainstream media don’t get those. You can’t have press freedom if news gathering can be shut down in a courtroom by a judge going draconian against a refusal to disclose sources. And you can’t give Joe Schmoes?all of them?the same freedom of courtroom refusal, or due process goes away for everyone. So there has to be a distinction.

    Professor Volokh sticks to the law as courts have defined it. What I just wrote is something many courts understand, and have long guided themselves by, but judges know they can never say so in public. It may be that Professor Volokh?who shows regularly that he is a better legal expert than a journalism expert?doesn’t know what an important role that tacit judicial forbearance plays, or how common it is. Or maybe he is just sticking within the 4 corners of his expertise.

    1. /\ /\ /\ Wonderful example of elitist BS.

      “The 1A protects for the mainstream media rights and powers you would be clueless to exercise, and thus don’t need”
      The 1A protects a number of things that any free citizen can exercise and do need on occasion. The mainstream media has no 1A rights or powers that are not available to a free citizen.

      “a judge going draconian against a refusal to disclose sources” If a free citizen is required to bear witness against someone when called to trial, then the mainstream media should not enjoy any special rights Last I heard, if I knew who committed a crime and refused to acknowledge that on the stand, then yes I will be held in contempt. A ‘journalist’ or investigative reporter is not some elitist club that enjoys special rights If they are too stupid to leave a paper trail or forget the words “I don’t recall”, then they can languish in prison for contempt. They are not the keepers of secret knowledge.

      1. ” The mainstream media has no 1A rights or powers that are not available to a free citizen.”

        In much the same way that the same law keeps millionaires and homeless people alike from sleeping under bridges.

        Institutional media gets its power not by what they do, but by the fact that they have resources to bring to bear. Want to get a broadcast license, buy a studio and a transmitter? Sure, in theory, you can do this… but the institutional media has the resource to do all of these things, and the lawyers and accountants to prepare the license application. You want to distribute your book to thousands of bookstores around the country? Sure, you can do it… you just have to get everything ready for print, buy or lease a press to do the printing, and then negotiate contracts with all the regional distributors and retailers to actually get your book out there… and that takes money to do from scratch. Or you can sign a book deal with a company that already occupies that space.
        Want to distribute your Deep Thoughts and Musings on the Internet? All you need is a computer and an Internet address, right? Well, except that a couple of major broadband ISPs are actively negotiating with the FCC to kill that route. When they get their way, you’ll have to pay them to have anyone see your Internet traffic, even if they want it and have already paid for Internet access.

      2. Here are two powers that institutional media have that are generally unavailable to a “free citizen.”

        1. They have the power to be believed when they promise confidentiality to a source.

        2. They have the power to confront high government officials on a basis of equality, because a high government official generally has little to fear from a “free citizen,” but a good deal more to fear from a news gathering publishing institution.

        That institutions can exercise those powers on behalf of the interests of “free citizens”?who would be at a loss to do so themselves?is a big part of what makes a free press worth having. How can anyone look at the history of this nation and not understand that?

        1. There are people who see no use in institutional media that doesn’t cheerlead for their political viewpoint.
          Historically, newspapers did so, back in the days when each major metropolitan center supported several newspapers. The newspaper industry centralized, however, and many (though not all) of the big metropolitan newspapers adopted more balance as the number of competitors shrank.
          Broadcasters, on the other hand, were bound by the Fairness Doctrine from the 30’s through to the 80’s. This meant that if the broadcaster took a side, they had to offer free airtime to “responsible opposing viewpoints” Since free airtime for opposing viewpoint displaces paid advertisements, broadcasters mostly avoided taking sides. There are some side effects from that era still with us… broadcast news outlets tend to offer two views on every topic, which is fine but A) sometimes there’s more than 2 reasonable viewpoints, and B) sometimes there’s really only one, but they’ll manufacture a second one just to have a second one.

          1. James, you are a keen observer of recent press history, and offer an impressive summary. But you nevertheless understate with: “There are people who see no use in institutional media that doesn’t cheerlead for their political viewpoint.” Not strong enough. Legions afoot now want the courts to hamper and fetter institutional media as an obstacle to their preferred politics.

            Unfortunately, those have been drawing encouragement from Professor Volokh’s pet “press as technology,” theory, despite the fact that Volokh never quite gets around to joining his fans explicitly. Sometimes, he even makes slight acknowledgement that arguments to the contrary exist (as with this OP), but always avoids addressing those arguments substantively. I don’t think Volokh has any substantive rebuttal to offer. When challenged, he just reiterates his own sources instead (also, as with this OP).

            Meanwhile, Volokh’s commentary encourages a mob which vociferously opposes press freedom. At times, it looks for all the world like that is what Volokh intends, but I’m reluctant to conclude it is what he wants. Maybe, Volokh is by temperament a great lover of theory and consistency. Maybe that dulls his alertness to practical consequences, real-world contradictions, and the incongruity of attracting to his press freedom defense a large contingent campaigning under his encouragement for less press freedom. He certainly doesn’t seem to suppose that should make him reconsider his argument.

            1. What in the world are you talking about? Who wants the courts to hamper institutional media, and how?

        2. Neither 1 nor 2 are true. Or more specifically, they are not one smidge more true for institutional media than for a free citizen.

          1. If we talk and I promise you confidentiality, the government can attempt to compel me to give you up. This is true whether I am a newsreporter or a private citizen. Your only hope of protection is that I will have the will and the resources to fight an unjust demand. Granted, corporations do generally have deeper pockets and can hire better lawyers but corporations are also notoriously risk-averse. At the end of the day, it will always come down to the willingness of an individual to stand up to a charge of contempt.

          2. Laughable. While there is a grain of truth to Greener’s Law (which says “never argue with a man who buys ink by the barrel”), the great power of the internet is that it gives anyone the same potential reach and influence as the traditional media. That’s what officials fear – reach and influence, regardless of how that reach is achieved. Thomas Paine was highly influential despite not being part of any institutional media. Despite that, high government officials have never considered news reporters “on a basis of equality”. Useful tools is the most you can hope for.

          1. Seems correct.

          2. Rossami, bless your heart, you thought I was inviting a discussion of theories, when all I had on offer was a humble assertion of fact. Why not re-read your comment and see if you can find even a smidgen on which you would wager serious money during an empirical test?

            Number 1 is especially amenable to testing. I can tell you on the basis of experience that I have tested it both ways, in multiple locations, and the result isn’t even close. Confidential sources do trust reporters from the institutional press far more than they trust some unconnected stranger off the street.

            Give it some thought. The source knows the institutional press reporter has skin in the game. If the source is even the least sophisticated?as useful government sources tend to be?he knows that reporter stands to gain professional stature if he is forced to go to jail, but doesn’t talk. So the connected reporter’s willingness to stand a charge of contempt is going to be much higher, for good reason. And that same sophistication teaches the would-be source the opposite with regard to the unconnected guy?about whose conduct he also knows a judge is going to be, on average, a good deal sterner and more demanding.

            But just in case that explanation sounds like theory to you, try it yourself. Go find a confidential source in government with something consequential to impart, and persuade him it’s a good bet to tell it to you.

            Not enough characters to help you out on No. 2, but it’s a similar result.

    2. Heh. So you’re saying the 1A protects “journalists” from having to disclose sources of information in relation to some criminal or other proceeding, and it does not so protect those you deem joe schmoes? And you conveniently cannot cite any legal authority for this proposition, but it’s just so nonetheless? How unconvincing.

      I’m quite certain there are joe schmoes, some of them self-proclaimed journalists with a keyboard, who would not be clueless to exercise and would not agree that they “don’t need” such rights and powers.

      1. M.L., I am Joe Schmoe myself?not a member of the institutional press. But however much I treasure my right to a free press for myself, I’m not so dim that I don’t understand that protecting that right in the hands of the institutional press helps me more, and in different ways, than I can manage on my own. That is so because even a skilled investigative reporter, without institutional backing which people he interviews can’t ignore, generally gets nowhere. You lie to the New York Times, and you know you risk hurting yourself. You can lie to Joe Schmoe as much as you like, with little or no risk.

        So Joe Schmoe gets that benefit and gives up nothing. Better still, Schmoe can exercise the news gathering privilege to its fullest extent, simply by starting his own institutional press, and tailoring its operations to his own speech preferences.

        1. (continued)

          Now consider what happens if every Joe and Janet Schmoe insist they get every courtroom consideration an institutional press reporter needs. That ends due process for litigants, because instead of it being rare and unusual for a witness to decline to answer, they all decline. At that point, the judge has no choice. He has to come down hard, with draconian contempt citations and penalties, until that testimony is compelled.

          At that point, news gathering from confidential government sources dries up. You end up knowing nothing about government or policy, except what people in power choose to give you.

          No matter how much you think you hate particular press institutions, that doesn’t mean there can’t be any that would serve your needs the way you want them served?and bring power to that service that you can’t wield yourself. You should think that over before you continue to demand that the institutional press be crippled by the courts.

          1. What are these “courtroom considerations”? I don’t get your argument, but whatever it is it seems to be clearly a normative argument rather than a serious point about the Constitution. I agree that freedom of the press is important, that media institutions can do good and their rights must be preserved. No idea how anyone supposedly wants the courts to cripple them.

            1. M.L., because most judges recognize competing demands between due process and press freedom, they split the baby when institutional press reporters clam up. The reporters get pro-forma penalties they can reasonably endure, not serious attempts to ruin them, or their parent institutions, with penalties so draconian that the reporters and their employers have no choice but to knuckle under. That is very common. I have known only one case where it did not happen?where a judge imposed a ruinous fine that would put the employee’s newspaper out of business. That was overturned.

              Are you under the impression that similarly lenient conduct is commonplace when non-press litigants refuse testimony?

              Note that on both sides of the problem, serious Constitutional questions are entangled?freedom of the press in the first instance, and right to due process for all litigants in the second. The problem is that rare exceptions involving the press don’t have sufficient impact to undermine due process generally, but extending the same regime of leniency to everyone would do that.

            2. No idea how anyone supposedly wants the courts to cripple them.

              Surprised you don’t get it. Anyone who pretends institutional media aspire to “elite” status, which ought to be opposed on the grounds of leveling the allocation of rights among everyone, is on the road to crippling press freedom. And, I think, probably on that road in most instances because he prefers that result. There are many commenters on the web, and on this blog, who make no secret of their hostility to institutional media.

              That is short-sighted for a reason I have already explained. The exercise of judicial protection for a news gathering privilege, even at the cost of some lost due process, procures press freedom benefits for all of society. That includes even those whose preference would be that the institutional press disappear. Not everyone is insightful enough to recognize every source from which he draws benefit, but that doesn’t mean the benefit isn’t there.

    3. Do I understand you correctly? You agree that in expression of ideas, there is no difference between the institutional media and individuals. It is only in the gathering of news that there is a difference?

      1. Bored Lawyer, assuming you are asking that of me, yes, of course. But I will go farther, and note that no one currently speaking as an individual is constrained from founding and operating his own institutional press, and thereafter claiming whatever prerogatives the nation allows for that. So there is no distinction at all with regard to persons, just with regard to roles, methods, and conduct.

  8. The “press” likes to say the represnet the public, if that is true then they should be fighting for all of us not for special prilegrs for themseles.

  9. Unfortunately the biggest threats to free expression in America now come from censorship from social media companies like Twitter, Facebook, and Google-Youtube, and they aren’t covered by the first amendment.

    The conservative and Libertarian perspective is that there is no role for government in regulating speech or forcing speech on private corporations. But their is a free-market way to to make sure that those platforms are not censoring people that are not violating clearly defined terms of service. All of those companies benefit hugely from the safe harbor provisions in DMCA and the Communications Decency act of 1996, both of which vastly reduce the potential liability social media companies and reduce their costs.

    I’d like to see Congress tackle viewpoint censorship by social media companies by requiring they publish their terms of service and have to provide justification for removing material specifically referencing which terms the material violates. While this is a form of Congress meddling in private market, the social media companies would be free to decline the liability protects of DMCA and the Communications Decency Act, or clearly state in their terms of service that conservatives and their viewpoints aren’t welcome on their services.

    1. “The conservative and Libertarian perspective is that there is no role for government in regulating speech or forcing speech on private corporations”

      That is A conservative and Libertarian perspective, but it is not the only one.

  10. This doesn’t seem like a very confusing construction: “freedom of speech”=freedom of the vocal word and “freedom of the press”=freedom of the printed word, essentially the two forms of communication of the day

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  12. It’s not about an industry or any particular technology. It is about any mechanism for the the expression of thought starting with the town crier and extending out from there.

    1. Yes, I’m drawing a distinction between free speech and what the crier does. Mainly because the crier is reading/working from copy, not necessarily conveying what is in his own mind.

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